Moussa Soumah v. Eric Holder, Jr.
403 F. App'x 999
6th Cir.2010Background
- Soumah, Guinean citizen, entered the United States in 2003 without valid entry documents and sought asylum in 2004.
- DHS issued an NTA on August 11, 2004 directing appearance, but did not specify a time or date for the hearing, noting the hearing would be calendared.
- Soumah moved addresses in 2005 and 2007 but failed to update the Immigration Court, though he notified DHS of moves.
- The Immigration Court mailed a NOH on October 25, 2006; Soumah claims he did not receive it.
- Soumah failed to appear at the November 20, 2006 hearing, resulting in an in absentia removal order.
- Soumah moved to reopen in November 2007, arguing defects in the NTA and lack of notice; the IJ denied, and the BIA affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the NTA effective without a time/place? | Soumah contends the NTA failed to specify time/place. | DHS/BIA held NTA effective; scheduling can be provided by NOI. | NTA effective despite lack of time/place; scheduling can follow. |
| Was Soumah entitled to notice of the hearing given his address changes? | Soumah argues he should have received NOH. | Failure to update address forecloses notice; in absentia allowed. | No written notice required if alien failed to provide address; in absentia permitted. |
| Standard of review for BIA's denial of motion to reopen. | Not at issue; focus on whether BIA abused discretion. | BIA's denial is reviewed for abuse of discretion with deference to statutory constructions. | BIA did not abuse discretion; decision affirmed. |
Key Cases Cited
- INS v. Doherty, 502 U.S. 314 (1992) (broad BIA discretion in denying motions to reopen)
- Haddad v. Gonzales, 437 F.3d 515 (6th Cir. 2006) (standard for abuse of discretion in removal proceedings)
- Sswajje v. Ashcroft, 350 F.3d 528 (6th Cir. 2003) (abuse of discretion review framework)
- Babai v. INS, 985 F.2d 252 (6th Cir. 1993) (statutory constructions in INA proceedings)
- Aguirre-Aguirre v. INS, 526 U.S. 415 (1999) (deference to BIA/AG interpretations)
- Haider v. Gonzales, 438 F.3d 902 (8th Cir. 2006) (notice requirements for in absentia hearings)
- Dababneh v. Gonzales, 471 F.3d 806 (7th Cir. 2006) (NTAs and scheduling responsibilities)